1989 PLP (C (PLC(CS))

Abdul Karim Malik for Respondent No.

4. MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Through this present appeal, appellant has prayed for the acceptance of his prayer for setting aside the impugned order dated 30-1-1988 passed by respondent No. 3, vide which his services were terminated without any fault of his. According to him he was employed as a Chowkidar at Government Girls Primary School, Maira Khurd vide order dated 4-10-1987 but was dismissed from service per order conveyed to him through endorsement dated 8-11-1987 and instead respondent No. 4 was appointed. However, the appellant was re-instated later on and respondent No. 4's services were dispensed with by respondent No.

3. The episode did not end here and the appellant was once again dismissed from servile per impugned order dated 30-1-1988 and in his place respondent No. 4 was employed at the recommendation of M.PA. concerned. The appellant was not nerved with any notice. No departmental proceedings were initiated against trim and the action taken was illegal, void, without jurisdiction and against the basic principles of natural justice. He preferred an appeal to the authority but was informed that no action can be taken in response to the said appeal and he should wait for a new posting. Earlier he filed an appeal, which was dismissed as withdrawn with permission to bring a fresh appeal. Claim of the appellant was vehemently resisted by the respondents who filed separate written statements. It was asserted by them that the appellant has got no cause of action, that the appeal is incompetent, that it is barred by time that the appellant is estopped by his own conduct and that he has suppressed the material facts from this Tribunal. On facts it was alleged that the service of the appellant was liable for termination without assigning any reason, and without any time. No injustice was done to him. He was not found suitable by the representatives of the Illaqa and further that he is serving as a Chowkidar at another school and he has got no locus standi. Learned counsel for the appellant argued that appellant was a Government servant and in case of any disobedience/inefficiency/misconduct, the authority was bound to serve upon him a notice and to initiate proceedings under the N: W.F.P. Efficiency and Discipline Rules, 1973. In the present case his serves were terminated on the complaint of M.PA. of the Illaqa and instead respondent No. 4 was appointed. No procedure was adopted in dispensing away with his services and this was a void action on the part of the authority to bow before the foreign influence in the shape of M.PAs. or M.NAs. Government if wants to favour the elected representatives of the people, may do so by amending the relevant rules, but in the present circumstances, it cannot undo with the present rules. On the other hand respondents' counsel argued that appellant has been reinstated in service in the Boys School in the same village while the respondent No. 1 is employed as a Chowkidar in the same village in a Mosque School and the appellant has been compensated presently. He has got no cause of action/locus stand to come forward through the present appeal. We have given our patient hearing to the arguments advanced by both the sides. It is not denied by the appellant that he is not in service at present. He was re-employed on 15-5-1988 while he was terminated from service on 30-11988. He is definitely entitled to the seniority, if any, as well as to the emoluments of the intervening period on the one hand and on the other hand it is also the duty of the authority not to pay undue weight to the undesirable and illegal recommendations of the persons who have got no mention in the relevant rules. Of course the Government has got the powers to amend the rules but in the present circumstances when the service rules have not been amended, the authority cannot act/work in their disregard. In the instant case the relevant record was perused and it came to light that instead of recommendations the order itself was passed by the M.PA. concerned to appoint him or terminate him. This not the way in which office business is conducted. Moreover, there is no provision of termination of service in the relevant rules and the order was accordingly illegal on this ground too. Copy of the order be sent to the Provincial Government for circulation amongst the various departments working under it. The present appeal succeeds so far as the payment of the emoluments from 1-2-1988 to 14-5-1988 to the appellant is concerned. Costs of the suit be borne by the respondents 1 to 3 and the file be consigned to the record room. AA./107/Sr.N Order accordingly.